State v. Nesbitt

• Decision Date: 11 April 1957
• Docket Number: No. 8458,8458
• Citation: 79 Idaho 1,310 P.2d 787
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Homer NESBITT, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 787

310 P.2d 787

79 Idaho 1

STATE of Idaho, Plaintiff-Respondent, v. Homer NESBITT, Defendant-Appellant.

No. 8458.

Supreme Court of Idaho.

April 11, 1957.

Rehearing Denied May 20, 1957.

C. H. Higer, Emmett, Donart & Donart, Weiser, Norris & Welch, Payette, for appellant.

Graydon W. Smith, Atty. Gen., John R. Smead, Asst. Atty. Gen., Louie Gorrono, Pros. Atty., Emmett, for respondent.

KEETON, Chief Justice.

Appellant was charged with the crime of intentionally and unlawfully obstructing a public road in violation of Sec. 18-3907, I.C., by placing a large pile of dirt and a tractor therein, with the intent and purpose of obstructing the use of the road. He was tried and by a jury found guilty. Judgment was entered and sentence imposed. Appeal from the judgment was perfected.

The State claims the road obstructed is one acquired by prescription which runs from the vicinity of Emmett to the Third Fork Guard Station in Gem County, approximately five and one-half miles in length, and in part crosses the land of appellant or his relatives.

The obstructing of the road by appellant in the manner charged is not denied; it is his contention that the road or highway so obstructed is not a public road.

The evidence relied on by the State to establish that the road is a public highway is to the effect that the road had been used by the public generally without interference since 1893, or before, and to the time appellant obstructed it in July, 1955. The road has for many years been traveled and generally used as a public road without interference by farmers, the Forest Service, loggers and others. The road was repaired and graded and kept up at county or other public expense at different times from 1931 to and including 1955. In 1933, the road was worked on and repaired at County expense sufficient to enable the government to move equipment over the road to camps being constructed by it. The United States Forest Service, subsequent to 1909, and particularly in the 1920's improved, drained and worked on and kept up the road. Work at public expense was also done on the road at different times in 1934, 1948, 1949, 1950, 1951, 1953, 1954, and 1955. Appellant did some work on the road for which he was paid by the county in 1953. The State Highway Department performed work in upkeep and repair in 1953 and 1954.

By a lease dated January 1, 1955, appellant is a lessee of a part of the land across which the road runs.

Appellant had in 1954 and 1955 granted permission to MacGregor Triangle Company and Boise Payette Lumber Company to use the road across the land where the road obstruction was placed for a consideration paid.

When the road was first established the land across which it runs was mostly public domain. Patent to the land over which a part of the road runs, where obstructed by appellant in 1955, was issued to Elmer H. Nesbitt in March, 1926. There was some testimony to the effect that there were unlocked gates on some parts of the road. The road had not been laid out and recorded as a public road by the Board of County Commissioners, but is shown on county road maps prepared in October, 1915, and December, 1937.

The first question presented for determination is whether the road so obstructed by appellant is a public road.

Prior to 1893 all roads used as such for a period of five years are defined as highways. Sec. 851, Rev.Stat. of 1887. Under the statute as now in effect, Sec. 40-103, I.C., and in effect so far as pertinent here since 1893, roads may be laid out and recorded as highways by order of the Board of Commissioners, and all roads used as such for a period of five years, provided the latter shall have been worked and kept up at the expense of the public, or located and recorded by order of the Board of Commissioners are highways. Where the public uses a highway or road for the statutory period of five years and it is worked and kept up at public expense, a highway is established by prescription. Recording of it as such by the Board of County Commissioners is not necessary. Meservey v. Gulliford, 14 Idaho 133, 93 P. 780.

It is not required that a prescriptive road be worked on for five consecutive years, nor does the statute require work to be done throughout the road's entire length, but only requires that such work as may be needed be done when necessary, for the statutory period, in order to acquire a right by prescription. Otherwise, a highway acquired by prescription could be obstructed with impunity at any point where it had not been worked or kept up at public expense. Gross v. McNutt, 4 Idaho 286, 38 P. 935.

The testimony clearly discloses that necessary work on the road in question was done as needed at public expense for more than the statutory period, and until the same was obstructed it was open to general use by the public.

The fact that appellant leased or attempted to lease the use of part of the road across his leased land to logging companies is of no importance.

When a highway or road is once established by prescription, such establishment vests in the public an easement in, or right to use, the land over which the road runs for highway purposes; and the public cannot be divested of this right save by vacation or abandonment of the highway in the manner prescribed by law. 39 C.J.S., Highways, § 19, p. 937, Sec. 40-104, I.C.

In the situation before us an easement for the road was acquired prior to the time the patent was issued and the owner of the land takes the title subject to such easement. King v. Brown, 59 N.M. 325, 284 P.2d 214; 50 C.J. 962, Sec. 159; 73 C.J.S., Public Lands, § 85.

That a prescriptive road existed and exists across the land where the obstruction was placed by appellant is supported by the following cases: Kosanke v. Kopp, 74 Idaho 302, 261 P.2d 815; State v. Berg, 28 Idaho 724, 155 P. 968. The road having been once established it would have to have been abandoned for a period of five years before it ceased to be a highway. Sec. 40-104, I.C.

Appellant assigns as error the overruling of defendant's objection to the question propounded to the witness Swindell: 'Did you ever see any no trespass signs?'. The witness had testified that he had used the road in question for a number of years, had hauled logs over it without interference prior to the time the obstruction was placed in the road. Objection was properly overruled.

The court also overruled an objection to the question: 'Was this particular road in controversy open to the public?'. The witness was shown to be in a position to know, and the question called for a fact not a conclusion. The objection was properly overruled. If error, it is immaterial and no ground for eversal.

Appellant objected to the introduction in evidence of State's exhibit No. 9, which is a map prepared by the county surveyor showing the roads and their classfication in Gem County, and the general geographical location of the road in question. It was not contended by the State that the map had been recorded as a county road map of Gem County. The road which was obstructed by appellant was established as a prescriptive public road by other evidence. The map also showed other roads of the county and their connecting link. The map was properly admitted in evidence.

Appellant assigns as error the refusal of the court to give requested instructions Nos. 5, 6, 7 and 9.

Instruction No. 5 advised the jury that working the road for five years at widely spaced intervals, at different and separate points, is insufficient to create a public road and that the work required to be done by the county is sufficient amount of work each year for five years as is reasonably necessary to keep the road in question in passable condition and in a reasonable state of repair. The requested matter was fully covered by instructions Nos. 10, 11, 12 and 13 given.

Requested instruction No. 6: 'You are instructed that by the term 'public expense' is meant at the expense of the county'. No authority to sustain the contention is cited. A road could be worked and kept up at public expense by a highway district, road district, the county, the State Highway Department, the United States, or other taxing unit organized, among other things, to build and maintain public highways. The instruction was properly refused.

Requested instruction No. 7 had to do with dividing the county into suitable road districts and the duties of the Board of County Commissioners in this regard. The instruction requested was not pertinent to the issues and was properly refused.

Requested instruction No. 9 was to the effect that maintaining of gates along some portions of the road was strong evidence it was not a public road. The road having been established by prescription it could only cease to be a public road by abandonment as provided by law. Sec. 40-104, I.C.

The fact that at some time someone owning property through which the road ran placed an unlocked gate across the road is not of sufficient significance as to require the giving of such instruction. Rhodes v. Halverson, 120 Wis. 99, 97 N.W. 514.

In a supplemental brief appellant assigns as error the refusal of the court to give instruction No. 2, which is to the effect that if appellant believed the road in which the obstruction was placed was a private road and not a public road, he was incapable because of lack of criminal intent of committing the crime charged. Such is not the law. Wicked, wilful or criminal intent to violate the statute under which appellant was prosecuted is not an essential ingredient of the crime. The criminal act complained of by the State is malum prohibitum. The only inquiry is 'has the law been violated?'. State v. Keller, 8 Idaho 699, 70 P. 1051, 1059. See also State v. Sterrett, 35 Idaho 580, 207 P. 1071. A wilful act, intentionally done, cannot be excused because the appellant believed, if he did, that the road was a private one. Further, the testimony sustains the finding of...